DOD General Counsel Jeh C. Johnson on Conditions for the End of the Conflict

by Kenneth Anderson

Quick note further to Deborah’s post on the “end-game” of the current US counterterrorism regime. In category of great minds think about the same things, if not precisely alike, the same day Deborah posts, Defense Department General Counsel Jeh C. Johnson gives a speech at the Oxford Union, “The Conflict Against Al Qaeda and its Affiliates: How Will It End?” Ben Wittes has posted the text of the speech at Lawfare. Skimming it quickly, I’d flag this in particular (I’ve left out the footnotes):

In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end.” I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.

At that point we will also need to face the question of what to do with any members of al Qaeda who still remain in U.S. military detention without a criminal conviction and sentence. In general, the military’s authority to detain ends with the “cessation of active hostilities.” For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer, and that both our Nations faced similar challenging questions after the cessation of hostilities in World War II, and our governments delayed the release of some Nazi German prisoners of war.

For now, we must continue our efforts to disrupt, dismantle and ensure a lasting defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat to the citizens of the United States, the United Kingdom and other nations. We must disrupt al Qaeda’s terrorist attack planning before it gets anywhere near our homeland or our citizens. We must counter al Qaeda in the places where it seeks to establish safe haven, and prevent it from reconstituting in others.

4 Responses

“armed conflict” – it is noted that “armed conflict” is put in parentheses by General Counsel Jeh Johnson which suggests to me that he is not convinced of that characterization’s accuracy.

The WWII analogy from an IAC space he attempts to make brings us back to a number of things. I vaguely remember the Soviet Union asserting such windup authority when it was being criticized for holding POW’s many years after the end of the conflict in Siberia. As I remember, Japanese POW’s picked up in the Kuril/Northern Territories were not given Geneva status and were taken to Siberia and treated extremely harshly – at least this is the Japanese version and one of the issues that is raised in the ongoing Russia-Japan disputes about those islands .

Hiding behind this “wind up authority” argument therefore are a series of so many assumptions and analogies to an IAC between states that this very eloquent speech masks. That is part of the problem I am having with this speech.

Another part is that the speech simply elides the two fundamental questions of torture and treatment of detainees on the one hand and the signature strikes aspects of targeted killings. For a general audience all Johnson says rings true, but for someone who has been looking more closely, it does raise the question that invocations of law to mask lawlessness is as old as time.

Johnson is asking us for amnesia about what has been done in our names in this 10 year old effort by our government and to feel comfortable with the current approach. Even if one is comfortable with the current approach, the problem is the patent lawlessness of the earlier approach that has never been sanctioned nor have the high-level people who put it in place been held accountable – and that means criminal prosecution. Absent that level of internal accountability, as we saw with the Romney campaign – persons who are the architects of that lawlessness will come out of their dark holes as they again seek to gain and exercise power and will invoke the non-accountability as a justification for allowing them to go back to those lawless efforts.

It is obvious that the national security elites are a club and it is bad form for members of that club to actually call for the accountability of some of the members of the club. Risking being seen as being in bad form overrides concerns about torture and unlawful targeting being unmasked and those responsible being held accountable.

In all this, one sees again and again, the hand of the intelligence community providing “actionable intelligence” to the rest of the Administration with impunity about when such intelligence leads to the deaths of others or when the methods for getting that intelligence are suspect and illegal in domestic and international law – such as the torture, transfer out of Iraq space at which we are with regard to people STILL SITTING AT BAGRAM!!!

Cowardice in confronting our own demons is a particulary evil brand of cravenness by our civilian leadership.

Best,
Ben

12.01.2012
at 6:09 am EST Benjami Davis

Ben,

I refer to your opening paragraph. Nice try, but no. Earlier, the GC made it very clear he views it as an amred conflict (see: “The United States government is in an armed conflict against al Qaeda and associated forces, to which the laws of armed conflict apply.” “In 2006, our Supreme Court also endorsed the view that the United States is in an armed conflict with al Qaeda.” “…all three branches of the United States government … have endorsed the view that our efforts against al Qaeda may properly be viewed as an armed conflict.”)

I believe the parentheses were meant to emphasise that he was referring to ‘armed conflict’ in the technical legal sense and not a lay use of those words.

12.03.2012
at 2:49 am EST Ian Henderson

Brother Ian, sorry for the delay as I was writing (literally writing not taking) exams and thanks for the comment. I duly note that in earlier parts of the piece the GC sees it as an armed conflict. The quotation marks around armed conflict I noted I find fascinating in light of his lack of use of quotation marks in the prior use of the term. He uses the word war too without quotes. Why exactly did he feel the need at that point to add quotation marks? That is the question about which I was speculating.

I am sensing the Freudian slip here.

I can well see his earlier use without the quotation marks as reflecting a US foreign relations law or US political vision of the phrase armed conflict. He is a political appointee using the term as a representative of the US government. But, he is speaking at the Oxford Union and those quotation marks suggest to me that he is trying to make a distinction that is a difference in his use of the phrase armed conflict within quotation marks.

Maybe it is that US space sees an armed conflict while he recognizes that international space may not see an armed conflict as a matter of international law. I am not in his head but maybe he is finding it difficult to export the US armed conflict vision in that setting and so he protects himself with the quotation marks. As an American he may see it as an armed conflict, but as a speaker in England he may recognize that armed conflict may not be the right phrase to assume all accept in his audience.

His American armed conflict vision may try to set this in the state to state type conflict that we all know and understand in IAC. But that is to assume the answer isn’t it as to whether it is an IAC or a NIAC as a matter of international law. Maybe I was not artful enough in expressing myself above, but I think this now gets me to where I was trying to go.

Thus, the GC’s quotation marks may reveal an ambivalence about exporting American armed conflict visions.

I take this occasion to wish you a happy holiday season.

Best,
Ben

12.05.2012
at 5:06 pm EST Benjamin G. Davis

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